Basing the constitutional process and final document on a system of ‘guiding principles’ – as seen in South Africa, and Kosovo – is a good way of laying foundational rules for the assembly that the rest of the process will adhere to and that will guide the constitution’s drafting. Including guiding principles to encourage debate through various avenues, and a public consultation process would be a good model to emulate to ensure that the drafting procedure is as representational and reflective of society as the Libyans expect it to be. Following the examples of the two states mentioned, a system could be erected that vets any potential article through Supreme Court judiciary members (who could have a dedicated place in the drafting committee of the secretariat) to pre-emptively remove any clause that contradicts Libya’s obligations under such conventions as the ICCPR and Universal Declaration of Human Rights (also re-enforced in the Constitutional Declaration) and further study any decision to ensure that loopholes which may facilitate rights abuses of Libyans are plugged.
Whether the GNC will opt to extend their mandate as they have hinted at, or popular demands for a fresh legislature are successful the Constitutional Assembly has limited time to produce a constitution. This issue is further complicated by Libyans’ urgent desire to see constitutional progression. As it is especially important given the need for the assembly to work within an accepting atmosphere of support rather than animosity, it would behove them to comply with the public’s desire for haste insomuch as it is advisable and possible. This means that the basic operational requirements of the assembly – its budget, formal structure, and rules of procedures – will need to be developed in time for the assembly to approve or request changes to the GNC on their first meeting. If approved these elements will allow the assembly to start work immediately If not, a clear timeframe (of maximum a month) should be set for suggesting amendments to the GNC’s plan along with their justification to the GNC’s legislative and constitutional committee for approval.
Defining a high-level timeline for the constitution’s drafting and its ratification is necessary for the smooth progression of the constitutional process–especially to avoid ad-hoc crises forming as a result of the absence of a good plan. Furthermore a transparent goal-oriented timeline will help gain the public’s confidence by keeping them informed and allow them to monitor progression. Whilst the current timeline is set at four months, it should be noted that other transitional countries have stipulated a minimum period of a year (with a window for an additional 6 months if needed) for drafting a constitution. Regardless of the final decision, there should be time allotted for several activities, including the following: elections, tallying and verification of elections, convening the assembly, drafting the constitution (including public education and consultation efforts), holding a referendum (and providing further opportunity for the Libyan public to review and comment upon it), and ratification. Adequate time for these component parts of the constitution-making process will be needed for purposes of organisation, accountability, and allowing the population to be aware of the constitution’s progression.
Furthermore, this timeline can be supplemented with another one covering the Assembly’s work, and allotting a fair amount of time for reaching an agreement on each topic of the constitution. Both timelines can then be ratified or amended by the CA on their first meeting to be melded with their rules of procedure, guiding principles, and requirements for the debate. Together, these elements will form a comprehensive working programme to organise the Assembly and ensure their ability to work harmoniously with the secretariat and the public in an efficient, and transparent manner.
The structure suggested in this document—that of a representational assembly and technocratic secretariat—should be formalised within an amendment to the Constitutional Declaration, to ensure the structure is clear and protected, describing the duties of each secretariat committee and further levels within either body that may optimise their work. Given the relatively small size of the Assembly, it may not be the best use of time and resource—not to mention a potential stumbling block in creating national consensus—to follow other countrys’ (such as Tunisia) model of splitting the CA into committees centred upon separate segments of the constitution; however, this organizational paradigm may be useful within the secretariat. The work of the secretariat should remove most of the necessary background work of drafting a constitution. Separating out this function will allow the CA the opportunity to achieve actual or near consensus on various issues through plenary debate and discussion and will enable more constructive negotiations paving the way for greater popular support of the constitution.
The budget provision for the CA should take into account not only what is needed to fund the Assembly and the secretariat’s staff and resources, but also provide flexible budgets for public consultation and education as well as the co-option of further expert help if needed. An article within the organizing law or legal text identifying a procedure for the assembly to request further funding from the GNC based on clear justification for further funding could also prove useful in the case that unexpected cases or costs arise.
Rules of Procedure
Transparent Rules of Procedure, with clear accountability mechanisms in case of failure, will be needed to organise the Assembly’s work and manage the process in its entirety. In addition to regular rules of parliamentary procedure, including specifications for making motions, adjourning, readings, and public accessibility; the rules of the debates they have, the duties and obligations of each member, the procedure for interacting with the secretariat and the process for ensuring public and expert inclusion should all be laid out in the CA’s Rules of Procedure. Furthermore, clear and transparent procedure has proved conducive to a competent, efficient, and orderly process for other constituent assemblies while their absence usually results in the opposite. Clear and detailed rules are pertinent in a country inexperienced with such institutions, processes and their requirements.
Agenda Framework for Debates and Decisions
An agenda framework detailing the order of debate should be established by the aforementioned drafting committee of the secretariat. The agenda should identify each topic and break them up into sessions wherein options are decided upon, initial arguments are made, and experts and the public are consulted. This information can then inform further debates and readings, culminating in a deciding vote. This framework can also be applied to procedural decisions, such as requirements to engage in public consultation or consulting with experts in clearly demonstrable ways (such as the questioning of an expert, or a session discussing a paper provided by the secretariat) before a decision can be made. These procedural requirements should also be included as an amendment to the Constitutional Declaration to ensure it is adhered to, or at the very least within the Constitutional Assembly’s internal rules of procedure.
Rules should be provided encompassing cases of misconduct or incompetence by Assembly members. This would allow the Assembly to abide by and easily enforce a clear and transparent code, enabling the body to quickly and uncontroversially deal with cases that damage the its ability to work (such as perennially absentee members). Furthermore, this document, by also spelling out a procedure for the debates, can ensure that all members are given a fair amount of time to critique and respond to one another’s views within an orderly manner conducive to reaching a consensus, mitigating the chances of antagonistic behaviour, rifts in the assembly, or events otherwise damaging to the debate’s progression.
Contingency plans are necessary for ensuring that the rule of law is still followed in extraordinary times. This plan should cover the different possible worst-case scenarios. Problems such as running out of budget or a member permanently leaving the assembly (for whatever reason) can be quickly dealt with by making the CA accountable to the GNC. For example, the former would require an explanation for the early expenditure of the budget and a justification for approval of more funds by the GNC; the latter would allow the GNC to ensure that the assembly member is replaced via a system using the election results and investigate the causes for the vacancy. To prevent a crisis forming where, in the worst case scenario, the deadline for the constitution is missed; procedures can be instituted to deal with the matter. One method for dealing with such an unforeseen circumstance is, as was seen in South Africa’s transitional constitution, is that the CA would be required to provide the reasons why the constitution was not completed in time before a court a month prior to the expiration of the timeline with clear metrics to allow the judge to provide different amounts of time depending on the circumstance, or to take different courses of action.
A structured and organised constitutional process is key to ensuring that drafting is efficient and simultaneously encompasses all the aspects of inclusivity and informed consensus-building that it needs for its success and legitimacy. The following aspects can be included in the Assembly’s mandate, or Rules of Procedure for the house, to provide an inclusive and fair procedure that also helps the assembly in their drafting process through organisational and general best-practice work models emulated from other processes:
Organising the constitutional process
In order to ease the momentous task of drafting a constitution, and to better organise the assembly’s work practices; the process should be split up into the major components of the constitution (e.g. type of government, human rights etc…). This would then allow, through following their internal procedures, for each segment of the constitution to have a set period for:
- Presentations of the Secretariat’s research on the topic
- CSOs and public input
- Discussion on this segment’s relationship with other constitutional topics
- A vote to agree on content
Once voted upon the agreement can be checked for its constitutionality (in a system like that mentioned in the above ‘Guiding Principles’ section) and then go into the draft of the constitution which will be presented for a referendum. It is advisable for issues of readability for the drafting process to be done by one person in its entirety, and for the draft to then be approved by the CA members to ensure that it accurately represents the substance of their agreements. Furthermore by discussing the relationship between different segments, the negotiating process between interest groups is made simpler as groups can make compromises in areas they consider less important in order to protect their core interests. This is a feature which may be emboldened through making the initial vote on each section non-binding, thereby making the constitutional process more fluid and facilitate consensus building in later sections, in this case only the vote on the actual draft (rather than just the substance of the agreements) would be binding.
Such a format is a variation on a model consistently employed throughout constitutional processes. This model was chosen over the type employed in Tunisia, whereby the assembly split into committees each dedicated to a section of the constitution, due to the relatively small size of the assembly and the stronger need for a nationally representative consensus on all sections. The benefits of this system are that it would allow each section the sole focus of the assembly, giving it the attention such important decisions deserve and in an order which allows for multi-dimensional constructive negotiations and simultaneously doesn’t constrain the Assemblymen’s ability to negotiate (such as a strict timeline for each section would do). This dedication and focus will aid the assembly in their debate and decision by allowing them space to familiarise themselves with the nuances of each section’s issues and give the debate time to develop without being distracted by issues from other sections. By having a clear timeline, the secretariat will be able to organise themselves and prepare their research and civic education campaigns. By knowing when topics will be up for debate, CSOs and members of the public will be enabled to submit recommendations in a relavent and timely fashion.
Overall, this system will create a transparent process. Further, it will ease engagement, ensure progression of the constitution through holding the CA accountable, and yield efficiency dividends in lending to the agreement-making process all necessary resources, including adequate time, to information, and opinions from Libya society.
Consensus Building & Dispute Resolution
Forming consensus over the content of the constitution and overcoming fractious disputes are the critical requirements for a successful, legitimate, and nationally accepted constitution.
Article 70 of Nepal’s transitional constitution lays out a good model for Libya to follow. Based upon splitting the constitution up and gradually working through it, as was advanced above, sub-articles 1 and 2 ensure each section’s final draft must reach a unanimous vote under a quorum of 2/3 (this would be relevant only to the final vote on the draft, rather than the vote on the substance of the agreement which is non-binding and which will be the basis of the draft). If this is unattainable, there are provisions for discussions between party leaders over a maximum of 15 days followed by a new vote, where a 2/3 majority vote is admissible if consensus was still not attained. A structured system like this for agreeing on the constitution’s content could be useful to Libya, however given the importance of region over party, and Libya’s inexperience with democratic procedure, a higher level roundtable discussion between party leaders may need to be replaced with a different conflict resolution system. A solution to this could be developed through enabling the judiciary as it is common practice for the judiciary to be involved in reviewing a constitution’s articles; moreover this panel could be supplemented with relevant experts from the secretariat and mandated with reaching an agreement based on objective metrics such as cost, efficiency, suitability, ease of implementation etc… The necessity of having a vote by a 2/3 majority of the house ensures that the decision reached will still have legitimacy as it was agreed upon by the assembly members, despite not being their own formulation, and will also protect against one faction’s ability to dominate the drafting process. Furthermore such a system would allow any momentum built up to be maintained and not allow the constitution to either be rushed through, or held hostage by a disgruntled minority.
This paper proposes that the General National Congress (GNC) enact structures and a set of procedures to govern and oversee the Constitutional Assembly’s (CA’s) effectiveness in producing a legitimated constitution. An issue of vital importance in correcting what has so far been a turbulent transitional process. It uses a mixture of successful models from the constitutional assemblies of other countries but yet considers the unique circumstances of Libya’s constitutional assembly as planned—both in terms of its make-up, as well as Libyans’ expectations of its nature and results in order to design a model which will yield as legitimate and widely accepted a constitution as possible.
This proposal deviates from current plans for the CA to be an elected assembly of technocrats whose mandate is to perform all of the technical requirements of a constitution’s drafters, aided by a merely administrative secretariat. Instead, it proposes that Libya capitalize on the fact that its CA will be elected and its membership small by recognizing it as the legitimately representative assembly with the mandate to determine substantive constitutional issues, and expand the role of the secretariat to a technical one, tasked with providing the expertise and technical assistance for the CA—roles normally associated with an appointed assembly. This is proposed under the belief that it will allow both bodies to focus on what they’re best suited to do, thus optimising the work of the assembly and the constitution’s chance for success. It is hoped that through this paper the GNC can devise a working mandate for the CA which is reflective of Libyans aspirations and optimised to guarantee the best chance of success for the new Libyan constitution.